Opinion
45959.
ARGUED FEBRUARY 1, 1971.
DECIDED FEBRUARY 25, 1971. REHEARING DENIED MARCH 29, 1971.
Workmen's compensation. Fulton Superior Court. Before Judge Etheridge.
George George, William V. George, for appellant.
Troutman, Sams, Schroder Lockerman, William H. Schroder, Jr., for appellee.
Where the evidence in a workmen's compensation case demands a finding that job-connected duties of lifting, stooping and bending combined with a pre-existing congenital infirmity to result in temporary total disability of the employee-claimant for a period of time, including hospitalization, his loss of time and medical expenses are compensable although the disability was gradually progressive, the date of the accident being considered as the date on which the disability manifests itself.
ARGUED FEBRUARY 1, 1971 — DECIDED FEBRUARY 25, 1971 — REHEARING DENIED MARCH 29, 1971 — CERT. APPLIED FOR.
Fairly construed, the evidence in this workmen's compensation case shows substantially the following: Joseph S. Thomas, the employee claimant, was born with spinal spondylolisthesis, a congenital condition causing back weakness because of a defect in the pedicle of the fifth lumbar vertebra so that it and the adjoining vertebra were not properly joined together by a bone connection. In the claimant's case the defect was asymptomatic until he started working as a welder for Ford Motor Company at a job requiring much stooping, lifting and bending for long periods of time in awkward positions. This type of work is too much for a person with this type of dorsal weakness. The claimant's back began to pain him and continued to grow worse until, after five months, he became disabled and he was forced to quit and seek medical attention, was placed on medical leave in January 1968, and received treatment. He was released for work not involving heavy lifting the following July and was placed in what was classified as a lighter job, but he was still required to pick up 85 pound objects, the back pain continued to increase again, and he left in September. He obtained a job with the United States Post Office two days later. He has retained this job although his back still pains him to some extent. Work that requires a person to bend and stay in a stopped position during an eight- to ten-hour day can and usually does aggravate the condition. No physiological changes have occurred which can be objectively shown by x-ray.
Thomas requested a hearing, after which the hearing director of the Board of Workmen's Compensation entered an award finding that "claimant did not suffer an accident and injury within the meaning of the Act, nor did he suffer aggravation of a pre-existing injury, since there was no injury." On appeal the full board affirmed, amending the findings to further state: "Claimant was engaged in a job which he was not physically able to perform, showed no damage to his back caused by his job, and the only symptom which he has shown is that of pain which resulted from performing work which he was not physically equipped to perform due to a pre-existing congenital deformity." The appeal is from the judgment of affirmance of a judge of the Superior Court of Fulton County.
Loss of employment time due to back trouble, perhaps because it may arise from so many varied conditions, frequently faces tough sledding before workmen's compensation tribunals. Where there is ascertainable physiological change as in cases of herniated disc, the end result may be proved by circumstantial evidence and constitutes an "accident" although the erosion which eventually produces the disability occurs imperceptibly over a period of time. Ideal Mut. Ins. Co. v. Ray, 92 Ga. App. 273 ( 88 S.E.2d 428). Contradictory evidence authorized the denial of compensation in Phillips v. Royal Indem. Co., 93 Ga. App. 263 ( 91 S.E.2d 304) and the claimant was impeached in Grooms v. Pacific Employers Ins. Co., 94 Ga. App. 865 ( 96 S.E.2d 525). The grant of compensation was affirmed in Employers Mut. c. Ins. Co. v. Dyer, 108 Ga. App. 623 ( 134 S.E.2d 49) where a ruptured disc necessarily entailing partial disability was shown although permanent disability resulted from a non job-connected accident. In Hartford Acc. c. Co. v. Ledford, 116 Ga. App. 402 ( 157 S.E.2d 318) an award finding generally against the claimant was held to have been erroneously reversed on appeal to the superior court; but again the question resolved itself around the weight to be given to specific testimony. In Fireman's Fund Ins. Co. v. New, 110 Ga. App. 596 ( 139 S.E.2d 343), where a fall induced adverse symptoms although the claimant's back would probably have eventually resulted in arthritic disability in any event, the board's award in favor of the claimant was affirmed. And in Hollifield v. Croft Chenille Co., 90 Ga. App. 594 ( 83 S.E.2d 584) the employee fell, and the testimony demanded a finding that her subsequent back disability was due to no other cause although she sustained no injury ascertainable objectively, as by x-ray.
It is well settled that the aggravation of a pre-existing infirmity, whether congenital or otherwise, is compensable. Manufacturer Cas. Ins. Co. v. Peacock, 97 Ga. App. 26 ( 101 S.E.2d 898); Aetna Cas. c. Co. v. Cagle, 106 Ga. App. 440 ( 126 S.E.2d 907).
It is also well settled that where a disability results which is objectively physiologically ascertainable, it is compensable although the onset of disability is imperceptible from day to day, and there is no one "accident" at a specifiable time and place to which the result may be attributable. Shipman v. Employers Mut. Liab. Ins. Co., 105 Ga. App. 487 ( 125 S.E.2d 72).
Taking these last two propositions as applicable law, and accepting as true the finding of fact that claimant was in fact disabled during the period he was on medical leave, and that this physical disability resulted from an attempt to do work which in his physical condition it was impossible to do, we must hold that the disability was an industrial accident within the meaning of the law.
Judgment reversed with direction that the case be remanded to the Board of Workmen's Compensation for disposition not inconsistent with what is held herein. Bell, C. J., and Pannell, J., concur.